Citation Nr: 1309416
Decision Date: 03/20/13 Archive Date: 04/01/13
DOCKET NO. 10-40 644A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York
THE ISSUES
1. Whether new and material evidence has been received to reopen the claim of service connection for a back disability.
2. Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The Veteran had active service from October 1966 to September 1968.
By rating action in July 1997, the RO denied, in part, service connection for a back disability. By rating action in May 2001, the RO found that new and material evidence had not been submitted to reopen the claim of service connection for a back disability. The Veteran and his representatives were notified of these decisions and did not appeal.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision by the RO which, in part, found that new and material evidence had not been submitted to reopen the claim for a back disability.
The issue of service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Service connection for a back disability was last finally denied by an unappealed rating decision by the RO in May 2001.
2. The additional evidence received since the May 2001 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim of service connection for a back disability.
CONCLUSIONS OF LAW
1. The May 2001 RO decision which last denied service connection for a back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012).
2. New and material evidence has been received to reopen the claim of service connection for back disability. 38 U.S.C.A. §§ 1110, 1111, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 3.306, 20.1105 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), VA has certain obligations to notify and assist the appellant. Given that this decision reopens the claim of service connection and then remands the appeal, an exhaustive analysis of VA's compliance with these statutes is not necessary.
Finality
Before reaching the merits of the Veteran's claim for a back disability, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
In this case, service connection for a back disability was last finally denied by the RO in May 2001. There was no appeal of that rating decision, and it became final. Therefore, the laws and regulations governing finality and reopening of a previously disallowed claim are pertinent in the consideration of the current issue on appeal.
A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012).
The Board notes that even if the RO determined that new and material evidence was received to reopen the claim, or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Here, the Veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
The Veteran's request to reopen his claim of service connection for a back disability was received in June 2005, and the regulation applicable to his appeal defines new and material evidence as existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2012). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.
The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim, as in this case dealing with a claim for service connection. However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996).
An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."'
The pertinent evidence of record at the time of the July 1997 rating decision that initially denied service connection for a back disability, included the Veteran's service treatment records (STRs) which showed no complaints, treatment or diagnosis for any back problems during service.
At the time of service pre-enlistment examination in May 1966, the Veteran reported a history of back injuries. However, no pertinent abnormalities were noted on examination at that time. On a Report of Medical History for service separation in September 1968, the Veteran indicated that he wore a back brace for a month after a back injury from an automobile accident in 1959, but that his injury resolved without residual defects. The Veteran specifically denied any current back problems during service, or any injuries or treatment other than those noted on the report. On examination, the Veteran spine and musculoskeletal system was normal.
Private medical records showed that the Veteran was treated for back pain of two to three days duration in June 1991. The Veteran reported that he was throwing logs a few days earlier and felt a pulling sensation in his back. X-ray studies at that time revealed degenerative disc disease at L4-5.
When examined by VA in November 1992, the Veteran reported that he injured his back in an automobile accident in 1968, but did not receive any treatment, and said that he reinjured his back in the mid-1970's and again 1984. The diagnosis was degenerative joint disease of the lumbar vertebra at L4-5.
A private medical report, dated in January 1997, showed that the Veteran reported that he injured his back in an automobile accident in 1967, and that he reinjured it again in September 1985.
In a statement received in February 1997, the Veteran reported that he suffered a back injury in a motor vehicle accident in service in September or October 1967, and said that he was thrown into the air and against the cab of the truck, and "awoke on the floor."
On VA examination in March 1997, the Veteran reported that he sustained a back injury in service in 1967, and again in September 1984. The diagnosis was history of lower back injury and L4-5 disc herniation and sciatica of the left leg.
The evidence of record at that time of the May 2001 rating decision included, the evidence discussed above, VA medical records showing treatment for back problems in January and February 1999, and private medical reports showing treatment for various maladies, including back problems from 1996 to 2001. The VA outpatient notes indicated that the Veteran was referred by his primary physician for possible surgical intervention for degenerative disc disease, and noted a history of back pain for at least 15 years, since a lifting incident.
The private reports showed treatment for back problems since 1993, following an on-the-job back injury and multiple episodes related to excessive physical activity. On an examination for employability assessment disability screening determination, dated in June 1997, the Veteran reported a history of chronic, severe back pain for seven to 10 years. A private report, dated in May 1994, showed a history of a back injury in 1979, resulting in torn ligaments, tendons, and damage to the left lower back area. A report, dated in July 1995, showed that the Veteran reported that he initially injured his back at work in 1984-85, and that he had chronic back problems ever since the on-the-job injury. The Veteran also reported that he was involved in a motor vehicle accident in 1967.
By rating action in May 2001, the RO declined to reopen the Veteran's claim for a back disability on the basis that while there was a reported history of a back injury prior to service, automobile accidents in 1967 and 1979, and a back injury at work in 1984-85, there was no evidence of any back problems in service or evidence that his current degenerative disc disease of the back was related to service.
The evidence added to the record since the May 2001 rating decision, consists of buddy statements from two servicemen, and numerous VA and private medical records, (including three volumes of records from the Social Security Administration) showing treatment for various maladies, including back problems from 1993 to 2012.
In this case, the prior final rating decisions which denied service connection for a back disability was based on a finding that there was no evidence that the Veteran was involved in an automobile accident in service or had a back disability at present that was related to service. The evidence added to the record since that rating decision includes sworn statements from two fellow service members to the effect that the Veteran may have been involved in a motor vehicle accident in service.
In this regard, the statements are presumed credible for the limited purpose of reopening the previously disallowed claim. Justus v. Principi, 3 Vet. App. 510 (1992). The sworn statements are new, in that they were not previously considered by the RO, and are material since it relates to an unestablished fact necessary to substantiate the claim or raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Board finds that the additional sworn statements are new and material, there is no need to discuss whether the other evidence is likewise new and material as the claim will be reopened solely on the basis of this evidence.
Having determined that the Veteran's claim is reopened, the Board finds that further development of the evidence is necessary, and such will be discussed in the Remand section below.
ORDER
To the extent that new and material evidence has been submitted to reopen the claim of service connection for a back disability, the appeal to reopen is granted.
REMAND
In view of the favorable decision to reopen the claim of service connection for a back disability, the RO must now consider the issue on a de novo basis.
In order to establish service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the AMC for the following action:
1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. The AMC/RO should schedule the Veteran for an examination with an examiner with the appropriate expertise to ascertain the etiology of any current back disability. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that any back disability found on examination had its onset in service or is otherwise related to service.
In offering this assessment, the examiner should discuss the prior medical evidence in detail and the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion.
The claims file and a copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All appropriate tests or studies should be accomplished. All pertinent symptomatology and findings should be reported in detail.
A complete rationale for any opinion expressed must be included in the examination reports. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.
3. The AMC should review all the evidence of record and readjudicate the Veteran's claim of service connection for a back disability on a de novo basis. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.
Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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WAYNE M. BRAUEUR
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs